State Consumer Disputes Redressal Commission
Vimal Kumar vs N I A on 29 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2014/849 ( Date of Filing : 24 Apr 2014 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Vimal Kumar - ...........Appellant(s) Versus 1. N I A - ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 29 Mar 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 849 of 2014 1- Vimal Kumar s/o Late Sri Dwarika Prasad, 2- Krishn Kumar s/o Late Sri Dwarika Prasad, Both R/o Village, Baroli, Thana, Ghatampur, District, Kanpur Nagar. ...Appellants. Versus 1- The New India Assurance Co. Ltd., 117/N/29, Saluja Hospital Building, Devik Cinema Road, Kakadev, District, Kanpur Nagar. 2- State Bank of India, Branch, Ghatampur, Kanpur Nagar through its Manager. ...Respondents. Present:- 1- Hon'ble Mr. Rajendra Singh, Presiding Member. 2- Hon'ble Mr. Vikas Saxena, Member. Sri Alok Sinha, Advocate for appellant. Sri A.K. Srivastava, Advocate for respondent no.1. None for the respondents no.2. Date 26.10.2023 JUDGMENT
Per Sri Rajendra Singh, Member- This appeal has been filed against the judgment and order dated 11.3.2014 passed by the Ld. District Commission, Kanpur Nagar in complaint case no.89 of 2019, Vimal Kumar & anr. vs. The New India Assurance Co. Ltd. & anr.
The brief facts of the appeal are that, the appellant purchased a Sonalika Tractor UP 78 AT 8988 after taking loan from the State Bank of India, Ghatampur Branch, Kanpur Nagar. The above tractor was insured with the insurance company for the value Rs.3,46,400.00 for the period 27.4.2006 to 16.4.2007. However, the insurance company committed a mistake in mentioning the date in the insurance policy as 16.4.2007 instead of 26.4.2007. The said tractor was stolen on 2.3.2007 by unknown person when the complainant was coming to Kanpur Nagar near CIT Tiraha, Shani Dev Mandir Thana Govind Nagar, Kanpur Nagar. The complainant immediately approached the police who denied to lodge the FIR. Thereafter, the complainant filed a application under section 156(3) Cr.P.C. in the court and after order of the court, the FIR was lodged on 4.4.2007. The complainant also informed the insurance company.
The matter was investigated by the police but the tractor was not found and thereafter, FR on 17.6.2007 has been submitted in the court and accepted by the court on 14.8.2007. The complainant again approached the insurance company and provided the documents as demanded by the company. The insurance company unnecessary investigated the matter after 8 months and found that the complainant himself did not take proper care of the tractor and the tractor was stolen by unknown person but the insurance company repudiated the claim vide letter dated 31.7.2008.
The complainant has filed a complaint before the ld. District Commission who dismissed the complaint. The impugned judgment and order is arbitrary, misconceived and contrary to law. The complainant immediately approached the police but they did not lodge the FIR. Therefore, he moved an application under section 156(3) Cr.P.C. in which direction to lodge the FIR was given and FIR was lodged. Then the matter was investigated by the police but as the tractor was not found, FR has been filed in the court and accepted by the court. The insurance company has stated that at least one person should be near the tractor. There is deficiency on the part of the insurance company. Therefore, it is most humbly prayed that the present appeal be allowed and the impugned judgment and order be quashed.
We have heard the ld. counsel for the appellant Sri Alok Sinha, ld. counsel for the respondent no.1 Sri A.K. Srivastava. None appeared for the respondent no2. We have perused the pleadings, evidence and documents available on record.
In this case, every-body knows that when a village person or general person goes to police station to lodge a report of theft of his tractor, he was generally asked to search the tractor for some days and then come to police station. In many cases, police did not lodge FIR. So, in this case when the FIR was not lodged in the police station, the complainant went to the court and filed an application under section 156(3) Cr.P.C. which was accepted by the court and after court's direction FIR was lodged. So, it cannot be said that there is intentional delay in lodging the FIR.
The main objection of the insurance company is that, that at least one person should be with the tractor but no body was with the tractor and the tractor was left unattended by the complainant. The tractor was insured, so in the present scenario, it is clear that there is carelessness on the part of the complainant and as the tractor has been insured, it will come under substandard claim, as is said in the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC).
In this case the respondent had purchased the vehicle Mahindra Scorpio bearing No.HR-18-8743 on 28.5.2003. on 27.9.2003, he had sent his vehicle to bring his children from the Jaipur. On the way, some unknown people stopped the vehicle, tied the driver and dumped him on the way and snatched away the vehicle. The report was lodged by the driver at the police station and the Appellant Insurance Company was informed of the same. Thereafter on 02.10.2003, the respondent filed an insurance claim, which was rejected by the Insurance Company. The appellant's version was that the vehicle was being used as a taxi and the four passengers had hired the vehicle for going from Gwalior to Karoli and those passengers, on the way, snatched the vehicle from the driver. The complainant's vehicle was insured for personal use and it was being used by the respondent as a taxi. According to the Appellant, the respondent had violated the terms of the insurance policy and, therefore, rejected the claim. The respondent filed a complaint before the District Consumer Disputes Redressal forum, District Courier.
According to the District Forum, the respondent had violated the terms and conditions of the insurance policy and the appellant insurance company was justified in rejecting the claim of the respondent. The respondent, aggrieved by the said order of the District Forum, filed an appeal before the State Consumer Commission. The State commission that observed that the theft of the vehicle has not been denied by the Insurance Company. However, the claim of the respondent under the policy was repudiated by the Insurance Company solely on the ground that the vehicle though registered and insured as a private vehicle, at the time of theft, was being used as a taxi for carrying passengers on. So, the said vehicle was being used contrary to the terms and conditions of the insurance policy.
The State Commission placed reliance on the decisions of United India Insurance Company Limited Vs. Gian Singh, II (2006) CPJ 83(SC), wherein it was held by the National Commission that in the case of violation of condition of the policy as to the nature of use of the vehicle, the claim to be settled on non-standard basis. Similar view was taken by the State Commission in Appeal No.1463 of 2004, Track Way Securities & Finance Pvt. Ltd. Vs. National Insurance Co. & Ors. decided on 23.3.2006. Relying on the settlement, the State Commission observed that the claim of the respondent herein ought to be settled on non-standard basis and the complainant respondent was thus entitled to the 75% of the sum assured. Consequently, the State Commission directed the appellant herein to be 75% of the amount that is ₹483,000.00 with interest @ 6% from the date of the complaint till payment.
The Appellant preferred revision petition before the National Commission. The National Commission, after considering the fact that the vehicle was used for commercial purpose, granted reimbursement on the non-standard basis as per the policy of Insurance Company and observed that the order of the state commission did not call for any interference.
The appellant aggrieved by the impugned order preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held, "Here the vehicle has been snatched/stolen. In the case of theft of vehicle, breach of condition is not germane. The Appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis."
So, in this case, the complainant is entitled for 75% of the insured amount of the tractor which is Rs.2,59,800.00 (75% of the insured amount Rs.3,46,400.00). The ld. District Commission has not taken this fact into consideration. The appeal is decided accordingly.
ORDER The appeal is allowed partially. The respondent no.1 isdirected to pay Rs.2,59,800/- (75% of the insured amount) to the complainant along with interest @12% p.a. within 30 days from the date of this order, otherwise the rate of interest will be 15% from the date of the this order till the date of actual payment.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated 26.10.2023 Jafri, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER